Evidence suggests that Judge Sonya Sotomayor has repudiated over a century of Supreme Court jurisprudence aimed at limiting judicial involvement in immigration matters.
A simple analysis of Sotomayor’s post-2000 immigration-related holdings shows that she has ruled against the government – and for the alien – over 60 percent of the time.
In addition to being somewhat hostile to the plenary power doctrine, it appears that Sotomayor’s decision-making may be political: she is apparently more willing to side with the government when the White House is controlled by Democrats.
The Supreme Court has signaled an unwillingness to second-guess what it considers policy-based decisions and historically has given strong deference to both Congress and the executive branch in the area of immigration, thus forming the basis of the plenary power doctrine. Nevertheless, attempts to weaken this doctrine and undermine the role of Congress and the executive branch in the realm of immigration regulation have been afoot for years, as I explained in a recent Backgrounder. Outside academia, advocates of a judge-regulated immigration system have been largely unsuccessful, but they may have found a friend in Sotomayor.
Evidence suggests that Sotomayor may take an interventionist approach to immigration.
Since the year 2000, Sotomayor has authored opinions on 33 cases related to immigration. In 20 of these cases, she ruled for the alien and against the government. In other words, Sotomayor ruled against the government approximately 61 percent of the time.
If one were to look only at her post-9/11 holdings, the percentage would be even more pro-alien: 9 rulings for the government, 20 for the alien. In this time period, Sotomayor ruled for the alien approximately 69 percent of the time.
It appears that Sotomayor was much more deferential to the government in immigration cases before 2000. This may be political: President Clinton , the person ultimately in charge of our immigration agencies during his two terms, nominated Sotomayor to the 2nd Circuit in 1997. One could speculate that when Republican President Bush took over immigration enforcement, Sotomayor became less deferential to the government for political reasons.
Without the plenary power doctrine, the judicial branch — rather than elected members of the political branches — would be in control of much of the nation’s immigration system as courts apply constitutional or “constitutional-like” standards to all exclusion and deportation cases. Theoretically, the ability of the political branches to determine who should be welcomed to our shores, who should stay, and who should go could be almost completely abolished in favor of a judge-regulated immigration system. Immigration policy decisions would be less likely to be shaped through the political process and would therefore lessen the power of the electorate to control the nation’s future by deciding who we are as a nation and who we will be. Furthermore, detailed political considerations appropriate to expert agency officials may not be adequately considered by judges who are generally without the requisite immigration expertise.